By Claudia J. Bayliff
October 18, 2003

Would we ask a robbery victim why he was wearing such an expensive watch and carrying so many credit cards in his wallet? Would we hold him responsible for his robbery? Would we assume that just because he had given away money in the past he automatically consented to having his money taken from him by force at a later date? Of course not.

These questions seem preposterous when put in this context. Yet historically rape victims were constantly asked humiliating, prying questions about their private sexual history and this irrelevant information was routinely admitted into evidence in rape trials. Unfortunately that practice continues today as we recently witnessed in the Kobe Bryant case. When Bryant's defense attorneys disclosed information about the alleged victim's consensual sexual history in open court, they violated Colorado's rape shield law and binding case law from the Colorado Supreme Court.

In the 1970s, legislatures across the county enacted "rape shield laws" to help protect rape victims from the re-victimization they suffered as a matter of course when they had the courage to report what happened to them.

Legislators recognized that just because a woman had consented to sex in the past did not mean that she consented to sex on another occasion. They also understood that a rapist who preys on a woman who recently had sex with someone else is no less guilty. Furthermore, legislators finally realized that the effect of allowing questions about the victim's prior sexual history was to punish the victim for her previous sexual behavior, rather than to punish the rapist for his crime.

The Colorado rape shield law "is the legislature's unequivocal commitment to the principle that victims of sexual assault should not be subjected to psychological or emotional abuse as the price of their cooperation in prosecuting sex offenders." This is how the Colorado Supreme Court recently described the important public policy behind protecting victims' private sexual histories in rape cases when it unanimously rejected a defendant's challenge to the statute.

As Chief Justice Mullarkey explained, the purpose of our rape shield statute is to avoid subjecting rape victims, who have already suffered a "crime of violence and domination calculated to humiliate, injure and degrade" them, from having to endure "the second trauma inherent in an irrelevant and embarrassing probe into the intimate details of their personal lives."

Colorado is not alone in providing these necessary protections for rape victims.

According to the National Conference of State Legislatures, all 50 states have some form of rape shield law. Thirty-three of these states also require that victims' names be kept private. Most of these laws were enacted almost 30 years ago as part of a series of legal reforms designed to protect rape victims from the abuses they suffered once they reported their rapes.

In Colorado, as in other states, evidence about a victim's past sexual history is presumed irrelevant in a rape case unless if fits within a few very specific and narrowly defined exceptions. The exceptions seldom apply when the defendant has admitted to the sexual conduct, but claims that it was consensual.

If a defendant wants to raise an issue about a victim's sexual history, he must do so ahead of time and the judge should conduct a private hearing, where the public and the media are excluded.

In those unusual circumstances where the judge permits the defendant to use the evidence, the judge then places careful limitations on how it is used.

Evidence about a victim's sexual history is rarely admitted when criminal defendants follow the correct procedures and that is how it should be.

Courts across the country have consistently found that rape shield laws do not violate a defendant's constitutional rights.

Criminal defense attorneys have an ethical obligation to represent their clients zealously, yet they must not violate the law in doing so. As the former assistant director of a local rape crisis team, I observed defense attorneys violating the rape shield law by asking impermissible questions about a victim's past sexual history, without complying with the mandatory safeguards the law provides.

In the Bryant case, it is happening again.

Once the questions are asked and the impermissible inferences are created, it is very difficult to undo the damage. This is especially true in highly publicized cases.

Rape is the most underreported serious crime. Only 16 percent of victims report this crime to law enforcement. Rape shield laws were established to overcome some of the traditional barriers that victims had to reporting their rapes and to minimize their re-victimization. In order for these laws to be effective, however, they must be strictly enforced and attorneys who violate them must be sanctioned.

Claudia J. Bayliff is an attorney with the National Organization of Women's Legal Defense & Education Fund's National Judicial Education Program. This article was written in conjunction with the Colorado Coalition Against Sexual Assault.

Copyright 2003, Rocky Mountain News. All Rights Reserved.